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How do I get motion back on calendar that was taken off-calendar because I failed to make the hearing in California Family Law?

Hemet, CA |

I filed a motion to modify custody. It was continued a few times because my ex got an attorney who needed additional time. I couldn't make the continued hearing date. I called the court and left a message as well as emailed the other attorney. The court took my motion off-calendar. How do I get it back on calendar? Do I have to have grounds such as mistake, surprise or excusable neglect. Should I file a formal motion? Under what authority would I make my motion? Code of Civil Procedure, California Family Code, California Rules of Court?

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Attorney answers 2


The easiest thing to do would be to re-file the same motion. Just reprint everything, date and sign it all, and file it. Get a new hearing date, serve it, and this time, show up. It never got heard, so there is no reason that I can see that you should not be able to simply refile it.

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Just file and serve it again.

Holly J Moore

Holly J Moore


There would be no need to set it aside based on surprise, mistake or excusable neglect because there is no order to set aside. No formal motion is necessary either. Just as other counsel have indicated, all you need to do is just re-file and re-serve it.

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